New York State Court of Claims

New York State Court of Claims

MYERS v. STATE OF NEW YORK, #2004-015-427, Claim No. NONE, Motion No. M-68755


Late claim application lacking a proposed claim and supported by non-specific allegations of general negligence denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Marcus Myers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 7, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. First, the movant did not submit a proposed claim with his motion as required by statute. Secondly, although the application makes reference to the exhaustion of his administrative remedies it provides no information from which the nature of the underlying claim might be discerned. The only substantive information provided by the movant is correspondence dated April 6, 2004 and April 7, 2004 referencing the loss of a yellow envelope containing legal material during movant's transfer from Great Meadow Correctional Facility at Comstock, New York to Oneida Correctional Facility at Rome, New York.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. As far as the Court can decipher movant appears to be asserting a cause of action sounding in ministerial neglect. As a result, the three year Statute of Limitations set forth in CPLR § 214(4) applies (Brown v State of New York, 250 AD2d 314, 318; Johnson v State of New York, 131 Misc 2d 630) and the motion is timely.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuses advanced for the failure to timely serve and file a claim are movant's alleged difficulties in accessing legal materials and his numerous transfers within the correctional system. In this regard it has been held that conclusory allegations that one is incarcerated and unable to access legal materials are inadequate to explain a failure to timely file an application for late claim relief (Sandlin v State of New York, 294 AD2d 723; Thomas v State of New York, 272 AD2d 650). The excuses proffered are insufficient and this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant asserts that appropriate officials were aware of the essential facts of his claim due to the filing of grievances and letters. However, the application clearly states an accrual date of December 3, 2003. Since the correspondence attached to the application are dated April 6, 2004 and April 7, 2004 it does not appear that the State received timely notice or was provided a meaningful opportunity to investigate the matter. Under the present circumstances prejudice to the State is obvious. These factors weigh against granting the motion.

The most important of the statutory factors is the potential merit of the proposed claim (Savino v State of New York, 199 AD2d 254, supra). As noted above the failure to assert any specific negligent acts or omissions on the part of a State employee or agent deprives the Court of the opportunity to appraise the potential merit of movant's claim. "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). This important factor weighs against granting the motion.

As to the last factor the Court cannot determine on this motion record whether or not movant has another available remedy.

Consideration of all of the above listed factors, particularly the lack of potential merit, requires denial of movant's late claim application.

October 7, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 6, 2004;
  2. Affidavit of Marcus Myers sworn to July 6, 2004;
  3. Affirmation of Stephen J. Maher dated August 2, 2004.